United States v. Debreus ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4761
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCILLON DEBREUS,
Defendant - Appellant.
No. 06-4762
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REYNOLD GELIN,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:03-cr-00474-CWH)
Submitted: November 6, 2007 Decided: November 27, 2007
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brandon S. Long, Gary G. Grindler, Tiffany R. Benjamin, KING &
SPALDING, LLP, Washington, D.C.; David B. Betts, Columbia, South
Carolina, for Appellants. Reginald I. Lloyd, United States
Attorney, Alfred W. Bethea, Assistant United States Attorney,
Florence, South Carolina; Thomas E. Booth, DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Francillon Debreus and Reynold Gelin appeal their
sentences imposed by the district court upon remand for
resentencing consistent with the rules announced in United
States v. Booker, 543 U.S. 220 (2005), and United States v. Hughes,
401 F.3d 540, 546-60 (4th Cir. 2005). See United States v. Gelin,
No. 04-4486, 2006 WL 521745 (4th Cir. Mar. 3, 2006) (unpublished);
United States v. Debreus, No. 04-4517, 2005 WL 1822432 (4th Cir.
Aug. 3, 2005) (unpublished). The district court was instructed to
first determine the appropriate sentencing range under the
guidelines and make all factual findings appropriate for that
determination. The court was then instructed to consider this
sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and then impose a
sentence. The court ordered Debreus be sentenced to life
imprisonment, as the court had ordered during the initial
sentencing procedure. The sentence was within the guidelines.
With respect to Gelin, the court accepted an argument concerning
the enhancement for Gelin’s role in the offense, lowered by two
levels Gelin’s offense level and sentenced him to 262 months’
imprisonment. Finding no error, we affirm.
Debreus contends his life sentence is so severe, the
evidence supporting the enhancements must be proven to a jury
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beyond a reasonable doubt. Otherwise, he claims his sentence
violates the Sixth and Eighth Amendments.
This court will affirm a sentence if it “is within the
statutorily prescribed range and is reasonable.” United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). A sentence that falls within the properly calculated
advisory guidelines range is entitled to a presumption of
reasonableness. United States v. Johnson, 445 F.3d 339, 341 (4th
Cir. 2006); see Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding application of presumption of reasonableness to
within-guidelines sentence).
We find there is no support for Debreus’ argument.
Because the sentence was based upon the properly calculated
guidelines range of imprisonment and the district court was aware
the guidelines were advisory and imposed sentence after considering
the § 3553(a) factors, we find it reasonable.
Gelin argues that the enhancements to his offense level
were based upon testimonial hearsay not subject to cross-
examination in violation of Crawford v. Washington, 541 U.S. 36(2004). He further claims his Fifth Amendment right to due process
was violated because the hearsay did not have the indicia of
reliability.
In Crawford, the Supreme Court held that the
Confrontation Clause prohibits the admission at trial of
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testimonial statements that are not subject to cross-examination.
Id. at 50-51. None of the courts to have considered the effect of
Crawford post-Booker have concluded that the rule announced in
Crawford applies at sentencing. See United States v. Katzopoulos,
437 F.3d 569, 576 (6th Cir. 2006) (“Though the cases may be a broad
signal of the future, there is nothing specific in Blakely, Booker,
or Crawford that would cause this Court to reverse its long-settled
rule of law that [the] Confrontation Clause permits the admission
of testimonial hearsay at sentencing proceedings.”); United
States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006); United
States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005) (same); United
States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (same); United
States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005) (same).
Accordingly, we find Gelin’s Crawford argument without merit.
With respect to Gelin’s Fifth Amendment argument, the
sentencing court may consider any relevant information, including
hearsay evidence, provided that the information has “sufficient
indicia of reliability to support its probable accuracy.” See
United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992); see
also U.S. Sentencing Guidelines Manual § 6A1.3(a) (2003). We find
there was no error when the court considered statements in the PSR
from persons who purchased crack cocaine from Gelin. The
statements were reasonably reliable. Gelin fails to show how the
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statements were not reliable. Accordingly, Gelin’s Fifth Amendment
rights were not violated.
We affirm Debreus’ and Gelin’s sentences. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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